NATIONAL PENSION COMMISSION V. FIRST GUARANTEE PENSION LIMITED & ANOR
(2013)LCN/6252(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of May, 2013
CA/L/1102/2011
JUSTICES
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
NATIONAL PENSION COMMISSION Appellant(s)
AND
1. FIRST GUARANTEE PENSION LIMITED
2. THE ATTORNEY-GENERAL OF THE FEDERATION Respondent(s)
RATIO
WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE EXERCISE OF DISCRETION OF THE TRIAL COURT
In our humble view, considerable caution and circumspection are called for in this sort of appeal. The reason is not far to seek. What is involved in this appeal is not the exercise of the discretion of this court. Thus, we lack the authority to substitute our discretion for that of the lower court. This court could only interfere if the lower court’s discretion was not exercised judicially and judiciously, that is, if its exercise was mala fide, arbitrary, illegal, or that it either considered extraneous matters or did not take material issues into consideration.
Thus, the issue here is limited to the question whether the exercise of that discretion was in accordance with the dictates of justice, The Resident, Ibadan Province v. Lagunju (1954) 14 WACA 549, 552; Aruna Kudoro v. Alaka (1965) 1 FSC 82, 83; [1956] SCNLR 255; University of Lagos and Anor v. Aigoro [1985] 1 NWLR (pt. 1) 143, 148; Oyeyemi v. Irewole Local Government Council (1993) 1 NWLR (pt 270) 462.
In this appeal, we shall proceed on the irrefutable premise that the very hallmark of the proper exercise of a judicial discretion is that it should be exercised in accordance with any relevant rules of law or practice and according to the rules of reason and justice and not in accordance with private or whimsical opinion, humour, or sentiment, Rooke’s Case (1598) 5 Co. Rep. 99b; Sharpe v. Wakefield (1891) AC 173, per Lord Halsbury at 173; cited in Oyeyemi v. Irewole Local Government Council (supra). PER NWEZE, J.C.A.
THE PRINCIPLES OF GRANTING INJUNCTIONS PENDING TRIAL
In the first place, we observe that the discretion exercisable in awarding an injunctive relief pending appeal is not co-extensive; co-eval or conterminous with the jurisdiction exercisable in awarding injunctive reliefs pendent lite, that is, in the course of the proceedings, Olu of Warri v. Hon Philip Nnaemeka-Agu (1994) 1 NWLR (pt 319) 192; Lekwot v. Judicial Tribunal [1993] 2 NWLR (pt 276) 410.The principles for granting injunctions pending trial are well illustrated in case law, Kigo v. Holman (1980) 3-4 SC 60; Kotoye v. CBN; 7-UP Bottling Co. v. Abiola etc, N. Tobi, The Law of Interim of Injunction in Nigeria, (Ibadan: St Paul’s Publishing House, 2006) passim; A. Babalola, Injunctions and Enforcement of Orders (Ile-Ife: OAU Press Ltd, 2000) passim; M. I. Jegede, Principles of Equity (Lagos: MIJ Professional Publishers Ltd, 1981), Spry, Equitable Remedies, passim. PER NWEZE, J.C.A.
THE PRINCIPLE OF THE EXERCISE OF JURISDICTION IN AWARDING AN INJUNCTION PENDING APPEAL
On the other hand, the principles for the exercise of discretion in awarding injunction pending appeal are the same with the principles for stay of execution, Ajomali v. Yaduat (No.2) [1991] 5 NWLR (pt.191) 266; Josien Holdings Ltd v. Lornamead Ltd. [1995] 1 NWLR (pt 371) 254; [1995] 1 SCNJ 133; (1995) LPELR-SC.183/1992; Aboseldehyde Laboratories Plc v. Union Merchant Bank Ltd and Anor (2013) LPELR-SC.276/2003. In exercising its discretion in both species, that is, stay of execution and injunction pending appeal, the court is under obligation to consider the following conditions, already, set out in binding authorities: (1) the grounds of appeal must raise substantial legal issues in an area of Law that is novel or recondite; (2) the application must disclose special circumstances why the application should be stayed or granted; (3) the application must disclose why matters should be put in status quo or preserve the res so as not to render the appeal nugatory, Onuzulike v. Commissioner for special duties Anambra and Anor (1990) 7 NWLR (pt. 161) 252, 259 (approvingly endorsed in SPDC Nig Ltd v. Amadi (infra); Akibu v. Oduntan (1991) 2 NWLR (pt.171) 1; Nwosu v. Nnajimka (1997) 12 NWLR (pt. 531) 100; Nduba (Nigeria) Limited v. UBN Plc (2007) 9 NWLR (pt. 1040) 439, see per Muntaka-Coomasie JSC in SPDC Nig Ltd v. Amadi (2011) LPELR-SC.150/2010, 53-54. PER NWEZE, J.C.A.
CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): By an ex parte application, the first respondent in this appeal, (as applicant), beseeched the Federal High Court, Lagos Judicial Division, (in this judgment referred to as “the lower court”), to favour it with the following reliefs:
1. An order granting leave to the applicant to apply for judicial review by seeking the following reliefs:
(a) A declaration that the taking over of the management of First Guarantee pension limited with effect from Monday 15th August 2011 and constitution of the Interim Management committee made up of Messrs by Aremu and a third member to superintend the affairs of the applicant until shareholders of the applicant convene an EGM/AGM with a view to properly constituting a board contained in letter Ref. No PENCOM/INSP/SURV/FIRST GUARANTEE/11/23 dated 12th of August 2011 and signed by one M.Y. Datti, Head, Surveillance Department of National Pension Commission, is illegal and void and of no effect whatsoever;
b. An order of certiorari removing into this court and quashing the decision constituting an interim management committee and taking over of the management of the applicant contained in letter Ref No. PENCOM/INSP/SURV/FIRST GUARANTEE/11/23 dated 12th August 2011;
c. An order setting aside all the steps or actions taken by the first respondent based (sic) or connected with or relating to the letters Ref. Nos. PENCOM/INSP/SURV/FIRST/GUARANTEE/11/23 dated 12th of August, 2011;
d. A perpetual injunction restraining the respondents whether by themselves, their servants, agents, officers and or representatives from taking any or further action in any form whatsoever or giving effect or any directives to the decision communicated to the applicants in the letters Ref. NOS. PENCOM/INSP/SURV/FIRST GUARANTEE/11/23 dated 12th August, 2011, and/or Target Examination Report dated 22nd March 2011;
2. An order that the grant of leave shall operate as a stay of all actions and steps taken by the respondents in respect of or in relation to or in connection with the letters Ref. No. PENCOM/INSP/SURV/FIRST GUARANTEE/11/23 dated 12th August 2011 and Target Examination Report dated 22nd March 2011 pending the determination of the substantive application for judicial review or pending further order by this court;
3. An order granting leave to the plaintiff/applicant to serve the originating processes in this suit on the respondents who reside outside the jurisdiction of this Honorable Court at the Federal Capital Territory, Abuja.
On September 6, 2011, the lower court ordered as prayed. It granted the first respondent’s application for leave to apply for judicial review. Upon being served with the said order, the appellant, swiftly, greeted the order and the first respondent’s suit with two applications filed on December 15, 2011. While one of the applications entreated the lower court to vacate its said ex parte order, the other application contested the jurisdiction of the court to entertain the first respondent’s suit. Hence, it prayed that the said suit should be struck out for want of jurisdiction. The two applications were taken together. In its ruling of October 20, 2011, the lower court vacated the said order and, further, struck out the suit for want of jurisdiction.
Aggrieved by the said ruling of the court (coram Abang J), the first respondent appealed to this court by its Notice of Appeal dated October 20, 2011. On the same day, it beseeched the lower court with an application for an:
…order of injunction restraining the respondents whether by themselves, their servants, agents, officers and/or representatives from interfering with and/or dealing with the assets of First Guarantee Pensions Limited or taking any steps or further actions in any form whatsoever or giving effect or any directives to the decision communicated to the Applicant in the letters Ref. Nos. PENCOM/ANSP/SURV/FIRST GUARANTEE/11/23 dated 12 August, 2011 and/or Target Examination Report dated 22nd March 2011 in order to preserve the res pending the determination of the appeal filed in this suit and for such further or other orders as this Honorable Court may deem fit to make in the circumstances.
Expectedly, the appellant, stridently, contested the application as evident in its counter-affidavit of November 11, 2011. The lower court heard the application on November 17, 2011 and reserved its ruling to November 28, 2011. In its ruling, the court favoured the first respondent with the injunctive order it prayed for pending appeal. The present appeal is the appellant’s expression of its dissatisfaction with the said ruling granting the first respondent an injunctive order pending the determination of its appeal.
The following issues were distilled from the Notice and Grounds of Appeal:
(i) whether the lower court was right when it held that the issuance or non-issuance of a pre-action notice in proceedings involving judicial review is an exceptional or special and recondite issue to warrant the grant of injunction pending appeal?
(ii) whether, despite the decisions of the Supreme Court in Amadi v NNPC [2000] 10 NWLR (pt 674) 76 and Nigercare Development Co Ltd v. Adamawa State Water Board and Ors [2008] 9 NWLR (pt. 1093) 498, the Court of Appeal decision in Bestway Electrical Manufacturing Co. Ltd (1998) 8 NWLR (pt.613) 61 can be said to be an authority to the effect that pre-action notice is not required in judicial review proceedings?
(iii) Whether the lower court evenly weighed the balance of convenience between the appellant and the first respondent in granting the injunction pending appeal in favour of the first respondent?
The first respondent distilled a sole issue for the determination of this appeal.
It was framed thus “whether or not the first respondent satisfied the requirements for the grant of an injunction pending appeal before the lower court.” This sole issue would be considered together with the appellant’s issues one and three. We shall take the liberty to renumber the appellant’s issues, accordingly. The original issue three is, now, re-numbered issue two. In the same vein, the original issue two is now issue three in this judgment.
ARGUMENTS OF COUNSEL
ISSUE 1
Whether the lower court was right when it held that the issuance or non- issuance of a pre-action notice in proceedings involving Judicial review is an exceptional or special and recondite issue to warrant the grant of injunction pending appeal?
When this appeal came up for hearing on May 2, 2013, learned senior counsel for the appellant, Emeka Ngige, SAN, with Obiora Atuegwu Egwuatu and K. Ojukwu, adopted the appellant’s brief filed on March 21, 2012. In the said brief, he drew attention to the ruling of the lower court of November 28, 2011. The court held as follows “in my humble view, this issue whether issuance and service of pre-action notice is a pre-condition on application for judicial review is a novel issue which is recondite in nature and this constitutes a special circumstance to warrant the grant of order sought.”
Counsel observed that the lower court considered the issuance or non-issuance of a pre-action notice as a pre-condition in judicial review proceedings as an exceptional or special circumstance for the grant of injunction pending appeal. He was not persuaded by that reasoning. He noted that several decisions of the Supreme Court and of this court had, consistently, held that where a pre-action notice was, mandatorily, required to be issued and served before the institution of a suit, any suit commenced in contravention of the said statutory provision was incompetent. As such, the court would have no jurisdiction to entertain it.
He pointed out that the first respondent had argued at the lower court that the provisions of Section 95 of the Pension Reform Act 2004 admitted of exceptions, citing suits commenced by way of judicial review which, in his contention, were not caught by the said Section 95. He noted that the first respondent’s counsel concluded that whether or not judicial review proceedings were contemplated in the provisions of the said Section 95 (supra) was special or recondite. The lower court agreed with that submission, hence, it granted an injunctive order pending appeal.
Learned senior counsel contended that the issue was not, special or recondite, citing Amadi v. NNPC [2000] (pt.674) 76, where the apex court interpreted Section 11(2) of the NNPC Act 1977 in pari material with Section 95 of the Pension Reform Act 2004. He explained that the apex court applied the above decision in the latter case of Nigercare Dev. Co. Ltd v Adamawa State Water Board (2008) 9 NWLR (pt. 1093) 498. The court reiterated that the phrase “No suit shall be commenced…” prohibited the commencement of all suits whatsoever. In the court’s view, the provision as contained in Section 11(2) of the NNPC Act 1977 (supra) “… covers all suits and whatever causes of action and is not limited to anything done pursuant to any act or statute,” pages 517 – 518; also, Ntiero v. NPA (2008) 10 NWLR (pt. 1094) 129 where the court re-stated the said principle of law.
He canvassed the view that by the repeated pronouncements of the apex court on the import and ambit of the expression or phrase “No suit shall be commenced” as used in Section 95 (supra), there was nothing recondite or special in the first respondent’s appeal. This was, particularly, so as the apex court had, consistently, maintained that the phrase embraced “all suits and whatever causes of action and is not limited to anything done pursuant to any act or statute” and “relates to all or any type of action.”
He turned to the lexical meaning of the term “suit” as defined in Bryan A. Garner (ed), Black’s Law Dictionary 7th edition page 1448 as “any proceeding by a party or parties against another in a court of law. It is also termed law suit, suit at law.”
He opined that the issue which this court would grapple with in the first respondent’s appeal, namely, whether Section 95 (supra) admits of any exception to its applicability, was no longer recondite since the Supreme Court has proffered the answer in its interpretations of similar provisions in the NNPC Act 1997 and the University of Ife Edit 1977. In his view, the type or specie of suit that gave rise to the decisions in Amadi v. NNPC and Nigercare case was of no moment.
He drew attention to the decision in Atolagbe v. Awuni (1997) 9 NWLR (pt. 522) 536. There, the Supreme Court held that under the doctrine of stare decisis, the only way it could be made to reconsider an earlier decision was by an application inviting it to overrule the said earlier decision. Hence, the court could not make contradictory decisions on the same question of law, citing page 566 paragraphs D-E of the report. He canvassed the view that this court was bound by the decisions of the Supreme Court on the interpretation of provisions similarly worded like Section 95 of the Pension Reform Act (supra), citing Amadi v. NNPC (supra) and Nigercare Development Co. Ltd v. Adamawa State Water Board (supra) etc.
He re-iterated his observation that the lower court had held that it had no jurisdiction to entertain the first respondent’s suit and struck same out. He submitted that, having so decided, the order granting an injunction pending appeal was tantamount to approbating and reprobating at the same time.
He conceded that by Order 28 Rule (1) of the Federal High Court (Civil Procedure) Rules, 2009 and the case laws on the point, an applicant, whose case had been dismissed, could apply for an interlocutory injunction pending appeal. He, however, submitted that, in the instant case, the lower court lacked the jurisdiction to grant injunction pending appeal because there was a manifest lack of jurisdiction. A specific statutory provision divested the lower court of jurisdiction to entertain the matter in the absence of issuance and service of a pre-action notice on the appellant by virtue of Section 95 (supra).
He observed that Sodeinde v. Registered Trustees of the Ahmadiya Movement in Islam [1980] 1-2 SC 163, 185-186, which the lower court relied upon in granting the order of injunction pending appeal, admitted of an exception. He took the view that Section 95 (supra) was the statutory provision which made it manifest that the lower court lacked the jurisdiction to grant an order of injunction pending appeal in this case. He submitted that having regard to Section 95 (supra), the lower court should not have granted the said order of injunction pending appeal since there was a manifest lack of jurisdiction as evident in the said provision of the Pension Reform Act. He, further, submitted that a court without jurisdiction could not make valid orders, Soludo v. Osigbo [2009] 18 NWLR (pt. 1173) 290; (2009) 12 SC (pt. 11) 137.
He, further, contended that the order of injunction which the lower court granted went beyond preserving the res in this suit. The order was made:
…restraining the first and second respondents whether by themselves, their servants, agents, officers and/or representatives from interfering with and/or dealing with the assets of the First Guarantee Pension Limited or taking any steps or further action in any form whatsoever or giving effect or any directives to the decision communicated to the applicant in the letters dated 12/8/2011, 22/3/2011 respectively in other (sic) to preserve the res pending the determination of the appeal filed by the applicant…
He explained that the directors of the first respondent had been removed even before the suit was filed. There was, thus, nothing to preserve in the removal of the directors. He re-iterated his submission that an order of injunction does not lie to restrain a completed act, Soludo v. Osigbo (supra). He explained that the order of injunction restraining the respondents “whether by themselves, their servants, agents, officers and or representatives from interfering with and/or dealing with the assets of First Guarantee Pension Ltd…” was not one of the reliefs sought in this court. In his view, the said injunctive order was made in vacuo. Worse still, it was not circumscribed in time and space but was left hanging ad infinitum.
He submitted that injunctions pending appeal are, usually, made pending the outcome of an appeal where one of the reliefs at the appeal Court was for a perpetual injunction. He observed that the injunctive order which the lower court granted was not made pending the outcome of any substantive application in this court as the grounds of appeal and the reliefs sought were not related to any order of injunction pending in this court. He drew attention to the relief which the first respondent is seeking in this court which is for “an order setting aside the order of the lower court declining jurisdiction to entertain this matter and striking out the Motion for judicial review.”
He maintained that it was clear that the first respondent never asked for any injunctive relief, whether perpetual or not, in its appeal pending in this court. Thus, the lower court was wrong to have granted an injunction pending appeal when no such relief was sought in this court. He urged the court to resolve this issue in favour of the appellant and hold that there were no special or exceptional circumstances in the appeal filed by the first respondent to warrant the grant of the injunction pending appeal granted by the lower court.
ISSUE 2
Whether the lower court evenly weighed the balance of convenience between the appellant and the first respondent in granting the injunction pending appeal in favour of the first respondents?
On this issue, he submitted that the lower court, in granting the injunction pending appeal in favour of the first respondent, failed to evenly weigh the balance of convenience between it and the first respondent. He observed that the court only considered the balance of convenience from the angle of the first respondent alone without, conversely, considering what would happen in the event that the appeal failed, pages 366-367 of the record.
He explained that the converse of what would happen if the appeal was dismissed did not play any role in the consideration of the lower court. He pointed that the appellant had argued before that court that the res in this suit would not be rendered nugatory in the event that the first respondent succeeded in this court in respect of their appeal. He noted that the appellant had argued that the interests, assets and value of the applicant would not, in any way, be adversely affected. On the other hand, they would be enhanced, the appellant being a statutory body empowered to regulate and supervise the first respondent. The appellant, equally, contended that the directors who were removed could be reinstated should this court decide that there was merit in the first respondent’s appeal. Above all, the appellant had pointed out that damages could, adequately, compensate the first respondent and its removed directors should the first respondent succeed in this court, pages 339, 341 to 342 of the record.
He submitted that the lower court was under obligation to place the issue of balance of convenience in granting the injunction pending appeal on an imaginary scale before deciding on which side the balance tilted. In his contention, the lower court failed to do this. He observed that, had the court evenly weighed where balance of convenience tilted between the appellant and the first respondent, it would have arrived at a better decision which would be in favour of not an granting injunction pending appeal.
He pointed out that the appellant is a statutory body established by Section 14 of the Pension Reform Act 2004. Its principal object is to “regulate, supervise and ensure the effective administration of Pension matters in Nigeria,” Section 15 of the Pension Reform Act (supra). The functions and powers of the Commission are stipulated in Sections 20 and 21 of the Act. These functions include:
(i) To regulate and supervise the scheme establish under the Act.
(ii) Promote capacity building and institutional strengthening of pension fund administration and custodians.
(iii) Receive and investigate complaints of impropriety leveled against any Pension Fund Administrator, custodian or employer or any other staff or agent and
(iv) To perform such other suited which in the opinion of the commission, are necessary or expedient for the discharge of its functions under the Act.
He contended that if the lower court had considered the fact that the actions of the appellant were in line with its statutory functions, and aimed at protecting the contributors to the contributory Pension Scheme whose funds were being managed by the first respondent, it would have refused the application of the first respondent. The appellant’s action would also protect the shareholders of the company and prevent such directors of the first respondent, who had been found wanting in the performance of their duties by the appellant, from dissipating the assets or funds of first respondent.
He urged the court to resolve this issue in favour of the appellant, that is, to hold that the lower court failed to evenly weigh the balance of convenience between the appellant and the first respondent and thus wrongfully granted an injunction pending appeal against the appellant.
FIRST RESPONDENT’S SUBMISSIONS
Learned senior counsel for the first respondent, V. O. Ogude, adopted the brief filed on June 6, 2012 but deemed properly filed on February 2, 2013. In the said brief, he formulated a sole issue couched thus:” whether or not the first and second respondents satisfied the requirement for the grant of an injunction pending appeal before the lower court?”
He submitted that the first respondent had fulfilled the requirements for the grant of an order for injunction pending appeal, Onuzilike v. Comm. For Special Duties [1990] 7 NWLR (pt. 161) 255, 259 – 261. He pointed out that, in the instant case, the first respondent’s application at the lower court complied with the above principles, citing paragraphs 3, 4, 6, 7, 9, 11, 13, 14, 15, 16, 17 and 19 of the first respondent’s affidavit in support of its application for an injunction pending appeal, pages 314 – 316 of the record.
He contended that the first respondent’s appeal in Appeal No. CA/L/16/12, pages 307 – 310 of the record, raised a novel issue, to wit, whether the first respondent ought to issue a pre-action notice to the appellant herein before commencing a prerogative action for judicial review. He, also, referred to page 365 of the record. He submitted that the cases of Amadi v. NNPC (supra) and Nigercare Dev. Co. Ltd v. Adamawa State Water Board (supra), which the appellant cited to challenge the novelty of the first respondent’s appeal, were cases, clearly, distinguishable from the proceedings before this court. He took the view that the above cases of Amadi and Nigercare (supra) emphasized the general principle of law on pre-action notice in respect of suits commenced by writ. In his view, the cases do not apply to cases for judicial review.
Praying in aid the unreported decision in Aku International Nig Ltd v. Nigerian Ports Plc and Anor (CA/L/184/98), he observed that the principle on issuance of pre-action notice was not water tight. He canvassed the view that, because of the nature and urgency involved in commencing a prerogative writ, to insist on the issuance of a pre-action notice would amount to allowing the appellant to hide behind the mask of mere technicality to thwart, protract and defeat the consideration of an application for certiorari on the merit, Ezenwa v. Bestway Electrical Manufacturing Co. Ltd (1999) 8 NWLR (pt. 613) 61, 78 -79. He drew attention to the observation of the lower court, in its ruling, that the law was not clear-cut on the issuance of pre-action notice in respect of a prerogative writ, page 365 of the record.
Counsel pressed the view that an issue which was not clear-cut in law was a novel issue which was recondite in nature and thus constituted a special circumstance to warrant the grant of an order of injunction pending appeal, citing Odutola v. F.B.N. Ltd (2000) 4 NWLR (pt. 653) 341. He submitted, as the lower court noted at page 365 of the record, that the first respondent’s grounds of appeal raised substantial and arguable points of law that required the preservation of the res pending the outcome of appeal.
He submitted t hat an injunction pending appeal was different from pre-trial interlocutory injunctions in the sense that it was made in the exercise of the rare jurisdiction that a trial court was left with when it must have delivered judgment or ruling and became functus officio in respect of the matter before it. He canvassed the view that the jurisdiction which was exercised by the lower Court in granting the order of injunction pending appeal was the jurisdiction to preserve the res in dispute pending appeal.
He took the view that Soludo v. Osigbo (supra), which the appellant cited, was distinguishable from the instant suit in the sense that the first respondent was only granted an injunction pending appeal while in the Soludo matter (supra), this court, whilst an appeal on jurisdiction was pending, made orders on issues in contest in the suit without first determining the question of jurisdiction. He cited page 296 paragraphs A-E on the apex court’s view on the need to preserve the res pending appeal. He contended that the lower court did not go beyond its jurisdiction to grant the order for injunction pending appeal. He referred to Order 28 Rule 1 (1) of the Federal High Court (Civil Procedures) Rules 2009. He submitted that the rules of court were clear on the point. He maintained that the lower court, in accordance with the rules of court, rightly, exercised its jurisdiction to grant the injunction pending appeal. In his view, this was more so where an application for stay of execution or stay of proceedings would be inappropriate as it was in this case.
He contended that the appellant misconceived the decision in Sodeinde v. Registered Trustees of the Ahamadiya Movement In-Islam (supra). He submitted that, in line with the above decision, Section 95 (supra), 2004, does not constitute a manifest lack of jurisdiction or specific statutory provision against the lower court’s exercise of jurisdiction in granting an injunction pending appeal. He pointed out that, on the contrary, the Act only provided for the issuance of pre-action notice before an action could be brought against it. He maintained that there was no provision in the Act which deprived the Federal High Court of its jurisdiction to grant an injunction pending appeal.
In his view, unless there was a specific provision to that effect, the lower court, in accordance with Order 28 Rule 1 (1) of the Federal High Court (Civil Procedures) Rules 2009, rightly, exercised its jurisdiction to grant the order for injunction pending appeal. He maintained that it was not necessary for the first respondent to ask for injunctive reliefs from this court before the lower court could exercise its jurisdiction to order for injunction pending appeal. He explained that what the first respondent had before this court was an appeal against the decision of the lower court. Thus, in order not to render that appeal nugatory, the lower court, rightly, exercised its jurisdiction to order for injunction pending appeal. In his view, Order 28 Rule 1 (1) of the Federal High Court (Civil Procedures) Rules 2009 lends support to the above contention. He, also, referred to Order 7 Rule 4 of the Court of Appeal Rules 2011. He submitted that the first respondent did not need to ask for injunctive reliefs from this court, having been granted same by the lower court at first instance.
He canvassed the view that the balance of convenience tilted in favour of the first respondent as the lower court held at pages 366-367 of the record. He pointed out that, in the substantive suit, the first respondent was seeking declaratory and injunctive reliefs against the appellant. These reliefs were intended to protect its rights and interests. He pointed out that the first respondent had shown, by the depositions in their Affidavit in support of, the application for injunction pending appeal, at pages 314-316 of the record, that their interest was at stake and there was the need to preserve the “res” in the matter pending the determination of their appeal in Appeal No CA/L/16/12.
According to him, the first respondent had also shown by its affidavit that, without an injunction in place, the appellant would take far- reaching decision that would affect the interests, assets and value of the first respondent. He submitted that without the injunction pending appeal, the appellant would further take steps in the company that would be even more detrimental to the first respondent and for which damages could not compensate it.
He submitted that the substantive suit was an action for judicial review of the acts of the appellant in the first respondent. The order for injunction pending appeal was to ensure that the first respondent’s substantive suit was preserved and status quo maintained at First Guarantee Pension Ltd pending the outcome of the first respondent’s appeal before this court in No CA/L/16/12.
RESOLUTION OF ISSUES 1 AND 2
As shown above, the lower court, after it had dissolved the injunctive order and struck out the suit, still favoured the first respondent with an order of injunction pending appeal. In other words, it exercised its equitable discretion in favour of the application entreating it for an order of injunction pending appeal. This appeal, inter alia, is against that exercise of discretion.
In our humble view, considerable caution and circumspection are called for in this sort of appeal. The reason is not far to seek. What is involved in this appeal is not the exercise of the discretion of this court. Thus, we lack the authority to substitute our discretion for that of the lower court. This court could only interfere if the lower court’s discretion was not exercised judicially and judiciously, that is, if its exercise was mala fide, arbitrary, illegal, or that it either considered extraneous matters or did not take material issues into consideration.
Thus, the issue here is limited to the question whether the exercise of that discretion was in accordance with the dictates of justice, The Resident, Ibadan Province v. Lagunju (1954) 14 WACA 549, 552; Aruna Kudoro v. Alaka (1965) 1 FSC 82, 83; [1956] SCNLR 255; University of Lagos and Anor v. Aigoro (1985) 1 NWLR (pt. 1) 143, 148; Oyeyemi v. Irewole Local Government Council [1993] 1 NWLR (pt 270) 462.
In this appeal, we shall proceed on the irrefutable premise that the very hallmark of the proper exercise of a judicial discretion is that it should be exercised in accordance with any relevant rules of law or practice and according to the rules of reason and justice and not in accordance with private or whimsical opinion, humour, or sentiment, Rooke’s Case (1598) 5 Co. Rep. 99b; Sharpe v. Wakefield (1891) AC 173, per Lord Halsbury at 173; cited in Oyeyemi v. Irewole Local Government Council (supra).
Now, in furtherance of the exercise of its discretion, the lower court proceeded thus at page 365 of the record:
In my humble view, the issue whether issuance and service of pre-action notice is a pre-condition on application for judicial review is a novel issue which is recondite in nature and this constitutes a special circumstance to warrant the grant of order sought.
The question now is whether the exercise of the lower court’s discretion predicated, inter alia, on the above reason was in accordance with the relevant rules of law or practice. In the appellant’s submission, the above would, readily, fly in the face of the rules for the grant of injunctive orders pending appeal. On its part, the first respondent contended that the lower court’s reason was in tandem with the settled authorities.
In the first place, we observe that the discretion exercisable in awarding an injunctive relief pending appeal is not co-extensive; co-eval or conterminous with the jurisdiction exercisable in awarding injunctive reliefs pendent lite, that is, in the course of the proceedings, Olu of Warri v. Hon Philip Nnaemeka-Agu (1994) 1 NWLR (pt 319) 192; Lekwot v. Judicial Tribunal (1993) 2 NWLR (pt 276) 410. The principles for granting injunctions pending trial are well illustrated in case law, Kigo v Holman (1980) 3-4 SC 60; Kotoye v. CBN; 7-UP Bottling Co. v. Abiola etc, N. Tobi, The Law of Interim of Injunction in Nigeria, (Ibadan: St Paul’s Publishing House, 2006) passim; A. Babalola, Injunctions and Enforcement of Orders (Ile-Ife: OAU Press Ltd, 2000) passim; M. I. Jegede, Principles of Equity (Lagos: MIJ Professional Publishers Ltd, 1981), Spry, Equitable Remedies.
On the other hand, the principles for the exercise of discretion in awarding injunction pending appeal are the same with the principles for stay of execution, Ajomali v. Yaduat (No.2) [1991] 5 NWLR (pt.191) 266; Josien Holdings Ltd v. Lornamead Ltd (1995) 1 NWLR (pt 371) 254; [1995] 1 SCNJ 133; (1995) LPELR SC.183/1992; Aboseldehyde Laboratories Plc v. Union Merchant Bank Ltd and Anor (2013) LPELR-SC.276/2003; Balogun v. Balogun (1969) 1 All NLR 349; Vaswani Trading Co. v. Savalakh Co. (1972) 12 SC 77; [1972] 1 All NLR 483; Deduwa v. Okorodudu (1974) 6 SC 21; Kigo (Nig.) Ltd. v Holman Bros. (Nig) Ltd (supra).
In exercising its discretion in both species, that is, stay of execution and injunction pending appeal, the court is under obligation to consider the following conditions, already, set out in binding authorities: (1) the grounds of appeal must raise substantial legal issues in an area of Law that is novel or recondite; (2) the application must disclose special circumstances why the application should be stayed or granted; (3) the application must disclose why matters should be put in status quo or preserve the res so as not to render the appeal nugatory, Onuzulike v. Commissioner for special duties Anambra and Anor (1990) 7 NWLR (pt. 161) 252, 259 (approvingly endorsed in SPDC Nig Ltd v. Amadi (infra); Akibu v. Oduntan [1991] 2 NWLR (pt.171) 1; Nwosu v Nnajimka (1997) 12 NWLR (pt. 531) 100; Nduba (Nigeria) Limited v. UBN Plc (2007) 9 NWLR (pt. 1040) 439, see per Muntaka-Coomasie JSC in SPDC Nig Ltd v. Amadi (2011) LPELR-SC.150/2010, 53-54.
As shown above, the lower court at page 365 of the record held as follows:
In my humble view, the issue whether issuance and service of pre-action notice is a pre-condition on application for judicial review is a novel issue which is recondite in nature and this constitutes a special circumstance to warrant the grant of order sought.
We had noted the divergent submissions on this point. We begin with the first requirement.
In NNPC v. Famfa Oil Ltd (2009) LPELR-SC.178/2008, 15-16, Fabiyi JSC noted that the adjective “recondite” is defined as obscure, little known, difficult to understand’. The distinguished jurist cited the Chambers’ Dictionary where the word is defined as “complicated, concealed, dark, deep, difficult, hidden, intricate, involved, mysterious, mystical, obscure, profound, secret, formal abstruse, arcane, esoteric; opposite of simple and straight forward.”
In this con, we, equally, note that “a notorious point of law which has been overburdened with previous decisions cannot be said to be recondite,” Lijadu v. Lijadu (1991) 1 NWLR (pt 169) 627, 646.What the lower court considered a recondite point of law was the question whether under Section 95 (supra), applications for judicial review were exempted from the pre-action notice requirement. Learned counsel for the appellant was not enthused with this conclusion. We appreciate his agitation in this regard.
The interpretation of the phrase in that section, namely, “No suit shall be commenced…” has been “overburdened with previous decisions” of the apex court, FCA Ltd v OAU (1993) 5 NWLR 171; Mobil Nig Unltd v. LASEPA (2003) 5 WRN 1; Amadi v NNPC (2000) 5 WRN 47; NNPC v. Farlin (1998) 7 NWLR (pt 559) 598; Umukoro v. NPA (1997) 4 NWLR (pt 502) 656; Katina Native Authority v. Makin Dawa (1971) 1 NWLR 100; Atolagbe v. Awuni (1997) 7 SCNJ 4; Anambra State Government v. Nwankwo (1995) 9 NWLR (pt.418) 247; NPC – Nig Cement Corporation Ltd v. NRC (1992) NWLR (pt 220) 747. As such, there is nothing recondite in the question.
That is not all. As Fabiyi JSC held in NNPC v. Famfa Oil Ltd (supra), even if the respondent had established that the question constituted a recondite issue, it must co-exist with special circumstances. Just as in application for stay of execution, in an application for injunction pending appeal, it is the subsistence of a recondite point of law coupled with the depiction of a special circumstance that would warrant a grant of an injunction pending the determination of the main appeal, Fabiyi JSC in NNPC v. Famfa Oil Ltd (supra). Thus, where these are non-existent, the application would be discountenanced. Above all, we even take the view that the lower court would appear to have glossed over one major point.
It has been noted that the requirement that the ground of appeal must raise a point of Law that is recondite does not depend on the importance or seriousness of the ground of appeal taken in isolation. Rather, it relates to what the effect of a refusal of stay of execution on the appellant would be if the appeal succeeds, Ajomali v. Yaduat (No.2) [1991] 5 NWLR (pt.191) 266. As Nnaemeka-Agu JSC (of the Blessed Memory) put it at page 291:
The recondity of a point of Law with reference to an application for a stay of execution [and this includes applications for injunctions pending appeal] is not determined in the abstract by reference to the importance or difficulty of the point raised in the ground of appeal per se. Rather, it is determined in concrete terms by reference to what the effect of a refusal to stay execution may be on the rights of the appellant, if successful in the appeal…
In our view, and applying the above principle, we are not satisfied that the lower court proceeded on the proper principles in considering the effect the grant of this application would occasion on the appellant’s statutory obligations as a supervisory agency, as counsel for the appellant argued. What is more, from the authorities cited above, we are not in doubt that the ground of appeal on this point does not orbit around any recondite issue for determination. Turning to the second condition, namely, that the application must disclose special circumstances, we note that case law prescribes that the special circumstances under which an order of injunction pending an appeal may be made are: (a) where the subject matter of the dispute will be destroyed if Injunction is not granted; (b) Where a situation of hopelessness would be foisted on the Court especially an appellate court; (c) Where execution will paralyse right of appeal; (d) where the order of the court would be rendered nugatory, and (e) Where execution will prevent a return to status quo if the appeal Succeeds, Ndaba Nigeria Limited v. UBN Plc (supra); SPDC Nig Ltd v. Amadi (supra).
As stated earlier, counsel for the appellant observed that the lower court considered the issuance or non-issuance of a pre-action notice as a pre-condition in judicial review proceedings as an exceptional or special circumstance for the grant of injunction pending appeal. The court held as follows “[i] n my humble view, this issue whether issuance and service of pre-action notice is a precondition on application for judicial review is a novel issue which is recondite in nature and this constitutes a special circumstance to warrant the grant of order sought.”
Counsel was not persuaded by that reasoning. We are, equally, not persuaded by that reasoning. In the first place, there is nothing recondite on the issue of issuance of pre-action notices. The apex court decisions on the question have construed the phrase “No suit shall be commenced…” to embrace all categories of suits. We had cited the cases on this point. What is more, the said question of pre-action in all suits have been “overburdened with previous decisions” that it “cannot be said to be recondite,” Lijadu v. Lijadu (supra). In our view, therefore, the lower court proceeded on the wrong principle in its exercise of discretion on this point. This court will, therefore, not abdicate its duty. Rather, we find that we have to interfere with that exercise of discretion in order to prevent injustice to the appellant, Ogolo v. Ogolo (supra); Adejumo v. Ayantegbe (1989) 3 NWLR (pt. 110) 417, 445.
We must pause here for one or two comments on another divergent interpretation of Section 95 (supra). According to counsel for the appellant, Section 95 (supra) was the statutory provision which made it manifest that the lower court lacked the jurisdiction to grant an order of injunction pending appeal in this case. He submitted that having regard to the said Section 95 (supra), the lower court should not have granted the said order of injunction pending appeal since there was a manifest lack of jurisdiction as evident in the said provision of the Pension Reform Act, citing Sodeinde v. Regtd Trustees (supra). He, further, submitted that a court without jurisdiction could not make valid orders, Soludo v. Osigbo (supra).
Expectedly, senior counsel for the first respondent disagreed with this interpretation of the above statutory provision and two cases cited. We, entirely, agree with the first respondent’s counsel.
Section 95 (supra) does not oust the jurisdiction of the lower court to grant an order of injunction pending appeal. It merely sets out a pre-condition to the activation of the court’s jurisdiction against the National Pension Commission, Owodunmi v. Registered Trustees of CCC (2000) 2 WRN 39; Madukolu v. Nkemdilim (2001) 46 WRN 1; Klifco v. Holfmann (1996) 3 NWLR (pt. 435)276; Ajayi v. Adebiyi (2013) 3 WRN 1, 36-37. So, if an intending plaintiff issues the requisite pre-action notice in accordance with the tenor of the section, there would be no justifiable impediment to the exercise of the court’s jurisdiction, Mobil v. Lasepa (2003) 1 MJSC 112, 129 paragraphs D-F per Ayoola, JSC.
Thus, once, the pre-action notice is, properly, issued and served, the agency would be subject to the lower court’s jurisdiction. With due respect, therefore, the appellant’s counsel’s reliance on Sodeinde v. Regtd Trustees (supra) and Soludo v. Osigbo (supra) was misplaced. The eloquent and compelling reasoning in the said cases is inapposite here, apropos the facts of the case that prompted this appeal and the statute that fell for construction, namely, Section 95 of the Pension Reforms Act, 2004.
With regard to the question of balance on convenience [issues two], learned senior counsel for the appellant had submitted that the lower court, in granting the injunction pending appeal in favour of the first respondent, failed to evenly weigh the balance of convenience between the appellant and the first respondent. He observed that the lower court only considered the balance of convenience from the angle of the first respondent alone without conversely considering what would happen in the event that the appeal failed, citing pages 366 -367 of the record.
The appellant had argued before the lower Court that the res in this suit would not be rendered nugatory in the event that the first respondent succeeded in this Court in respect of their appeal. Counsel had, equally, argued that the interests, assets and value of the applicant would not, in any way, be adversely affected. On the other hand, they would be enhanced, the appellant being a statutory body empowered to regulate and supervise the first respondent. He, equally, contended that the directors, who were removed, could be reinstated should this court decide that there was merit in the first respondent’s appeal. Above all, the appellant had pointed out that damages could, adequately, compensate the first respondent and its removal directors should the first respondent succeed in this court, pages 339, 341 to 342 of the record.
Now, this constitutive requirement for the grant of an injunction pending appeal is closely related to the issue of disclosing special circumstances. It comes to this, in an application for an injunction or stay of execution, the applicant has the burden to show that the balance of convenience he would suffer by the refusal of the application is more than that which the respondent would suffer if it is granted, Ukechukwu v. Iwugo (1989) 2 NWLR (pt. 101) 29; Total (Nig.) Plc v. Efakire (1998) 5 NWLR (pt.549) 307, approvingly, endorsed in SPDC Nig Ltd v. Amadi (supra).
The rationale of all binding authorities on this point is that in an application for injunction pending appeal, the balance of convenience is a relevant consideration and would not be granted where compensation would suffice and or where the applicant cannot compensate the respondent in the damages to be suffered, Nwaganga v. Military Governor of Imo State (1987) 3 NWLR (pt 59) 185; Oye v. Governor of Oyo State (1993) 1 NWLR (pt. 303) 437; Agbakoba v. Director SSS (1993) 7 NWLR (pt. 305) 363, approvingly, endorsed in SPDC Nig Ltd v. Amadi (supra).
From our perusal of paragraphs 3, 4, 6, 7, 9, 11, 13, 14, 15, 16, 17 and 19 of the first respondent’s affidavit in support of its application for an injunction pending appeal, pages 314-316 of the record, we endorse the submissions of the appellant’s counsel on this point. We agree that the lower court, in granting the injunction pending appeal in favour of the first respondent, failed to evenly weigh the balance of convenience between the appellant and the first respondent.
Indeed, from our reading of the reasoning of the court, we take the view that the court proceeded on the wrong principle. At pages 366 – 367 of the record, the lower court held that:
If the injunction sought is granted and the appeal succeeds at the end of the day, the life span of the injunction will be terminated upon judgment of the Court of Appeal having been delivered. The applicant’s substantive suit will then be relisted for hearing on the merits. The order if granted in my view is not to restrain a completed act. Rather the order if granted is to ensure that the applicant’s substantive suit is preserved in the event that its appeal succeeds, so that the suit then be heard on its merit and also the order of the Court of Appeal will not be rendered nugatory and make the entire efforts of the applicant and the Court of Appeal end in vain.
Now, there are some crucial matters which the lower court would appear to have ignored. As counsel for the appellant pointed out, at the lower court, it was the case of the appellant [as respondent] that it is the statutory body empowered to regulate and supervise the first respondent. Counsel for the appellant had, equally, contended that the directors, who were removed, could be reinstated should this court decide that there was merit in the first respondent’s appeal. Above all, the appellant had pointed out that damages could, adequately, compensate the first respondent and its removal directors should the first respondent succeed in this court, pages 339, 341 to 342 of the record.
Against this background, would the lower court be said to have exercised discretion based on the governing considerations? For one, an applicant who like the first respondent, [entreated the lower court for an order of injunction pending appeal], has the burden to show that the balance of convenience he would suffer by the refusal of the application was more than that which the respondent would suffer if it was granted, Ukechukwu v. Iwugo (1989) 2 NWLR (pt. 101) 29; Total (Nig.) Plc v. Efakire (1998) 5 NWLR (pt.549) 307, approvingly, endorsed in SPDC Nig Ltd. v. Amadi (supra).
As, already, noted above, in all such applications, the balance of convenience is a relevant consideration. Thus, the application would not be granted where compensation would suffice and or where the applicant cannot compensate the respondent in the damages to be suffered, Nwaganga v. Military Governor of Imo State (supra); Oye v. Governor of Oyo State (supra); Agbakoba v. Director SSS (supra), approvingly, endorsed in SPDC Nig Ltd v. Amadi (supra).
If the lower court, in the exercise of its discretion, did not take these material facts into consideration, the question would remain whether the said exercise was in accordance with the dictates of justice, The Resident, Ibadan Province v. Lagunju (supra); Aruna Kudoro v. Alaka (supra); University of Lagos and Anor v. Aigoro (supra); Oyeyemi v. Irewole Local Government Council (supra)? With due respect to the senior counsel for the first respondent, his position is unsupportable having regard to the rich jurisprudence on this point, Igwe v. Kalu (1993) 4 NWLR (Pt 285) 1; [1993] 4 SCNJ 21; (1993) 24 NSCC (pt 1) 393; (1993) LPELR-SC.202/1990; Sotuminu v. Ocean Steamship (Nig.) Ltd (1992) LPELR SC.55/1990; Josien Holdings Ltd v. Lornamead Ltd [1995] 1 NWLR (pt 371) 254; (1995) 1. SCNJ 133; (1995) LPELR-SC.183/1992; Aboseldehyde Laboratories Plc v. Union Merchant Bank Ltd and anor (2013) LPELR-SC.276/2003:
As Onnoghen JSC held in Aboseldehyde Laboratories Plc v Union Merchant Bank Ltd and Anor (2013) LPELR-SC.276/2003:
For a court to declare whether or not to grant an injunction pending appeal, it has, as of legal necessity to go into a consideration of the competing legal rights of the parties to the protection of the injunctive relief. It is a duty placed on an applicant seeking injunction pending appeal to establish by evidence in affidavit(s) the legal right he seeks to protect by the order which of necessity makes it mandatory for the court to go into the facts to determine whether such entitlement has been established.
[Italics supplied]
In all, we are satisfied that the lower court did not exercise its said discretion in accordance with the above well-laid principles. In our view, this is one case in which we have every justification for interfering with a lower court’s exercise of discretion in order to prevent injustice to the appellant, Ogolo v. Ogolo (supra); Adejumo v. Ayantegbe (supra). Accordingly, we resolve issues one and two in favour of the appellant.
ISSUE 3
Whether, despite the decisions of the Supreme Court in Amadi v. NNPC [2000] 10 NWLR (pt. 674) 76 and Nigercare Development Co. Ltd v. Adamawa State Water Board and ors [2008] 9 NWLR (pt. 1093) 498, the Court of Appeal decision in Ezenwa v. Bestway Electrical Manufacturing Co. Ltd (1999) 8 NWLR (pt. 613) 61 can be said to be an authority to the effect that pre-action notice is not required in judicial review proceedings?
Learned senior counsel explained that the lower Court, in granting injunction pending appeal, had anchored its decision on the fact that Ezenwa v. Bestway Electrical Manufacturing Co. Ltd (supra) decided that a pre-action notice was not required in proceedings involving judicial review and that Amadi v. NNPC and the Nigercare cases did not involve the issue of whether or not a pre-action notice was required to proceedings for judicial review.
He submitted that the decision in Ezenwa v. Bestway Electrical Manufacturing Co. Ltd (supra) was not an authority that a pre-action notice, where statutorily required to be issued, was not required in judicial review proceedings. He observed that the Supreme Court was confronted with the interpretation of Section 11(2) NNPC Act 1977, in pari materia with Section 95 of the Pension Reform Act 2004. The court construed the provision as covering all suits and whatever cause of action. Counsel, equally, cited Nigercare Dev. Co. Ltd v. Adamawa State Water Board (supra) where the apex court adopted and applied the decision in Amadi v. NNPC (supra), citing pages 517 – 518 paragraphs F – G, A – D.
He submitted that Ezenwa v. Bestway Electrical Ltd did not decide that a pre-action notice, where statutorily provided, was not required in judicial review proceedings. He observed that this court was faced with the issue of “[w]hether the appellant who is not a public officer but sued jointly with the third and sixth respondents who are public officers in the service of the State entitled to three months pre-action notice by Section 11(1) and (2) of the State Proceedings Law, laws of Anambra State Cap 131 but were not given, could avail himself of the provisions of the above law, when the relief claimed against them are not severable?”
He, further, submitted that the views of the court, at page 78 paragraph H, page 79 paragraphs C – D, were reached per incuriam and were obiter dicta. He noted that those views did not fall within the issue placed before the Court. He explained that the public officers, the third – sixth respondents, did not challenge the suit on the basis of non-service of pre-action notice on them. Above all, it was a public officer who, initially, filed a complaint at the customary court against the appellant. He observed that, Ezenwa’s case, a decision of the Enugu Division of this court, was decided on April 29, 1999, while Amadi v. NNPC and the Nigercare case were later decisions of the apex court. He explained that while Amadi’s case was decided in year 2000, the Nigercare case was decided in 2008. He canvassed the view that these decisions of the Supreme Court supersede the decision in Ezenwa. He took the view that though Amadi v. NNPC (supra) and Nigercare Dev. Co. Ltd v. Adamawa State Water Board (supra) did not deal with the issue of requirement of pre-action notice in suits commenced by prerogative writs as pointed out by the lower court, yet the apex court had held that the interpretation of the provision of the law covers all or any type of suit. He maintained that a prerogative writ is a species of a suit and is covered by the provisions of Section 95 (supra). He, equally, referred to the definition of “suit” in the Black’s Law Dictionary (supra). He cited Bakare v. NRC (2007) 17 NWLR (pt 1064) 606, 640 on the binding nature of earlier decisions that had construed provisions in pari materia with the provisions that fall for interpreted in subsequent decisions.
He urged the court to resolve the above issue in favour of the appellant and hold that Ezenwa v. Bestway Electrical Co. Ltd (supra) was not an authority that a pre-action notice was not required in prerogative writ proceedings. In his view, even if this court decided that a pre-action notice was not required in judicial review proceedings, the later Supreme Court decisions in Amadi v. NNPC and Nigercare Dev. Co. Ltd had overruled the decision in Ezenwa’s case.
RESOLUTION OF THE ISSUE
It is, we believe, an elementary proposition that the Supreme Court is at the apex of the judicial hierarchy in Nigeria. Thus, no lower court is permitted the indulgence of contradicting the position the apex court has taken on a principle of law, Odi v. Osafile (1985) 1 NSCC 14; Abdulkarim v. Incar Nig Ltd (1992) 7 NWLR (pt. 251); First Bank of Nig Plc v. Alhaji Salman Maiwada (2012) LPELR- SC.204/2002; Bucknor-Macleen v. Inlaks Ltd [1980] 8-11 SC 1; Bamgboye v. Olusogo (1996) 4 SCNJ 154; Okulate v. Awosanya (2002) 2 NWLR (pt 246) 530; Rossek v. ACB Ltd. (1993) 8 NWLR (pt 312) 382; Ewete v. Gyang (2003) 6 NWLR (pt 816) 345; Adegoke Motors Ltd v. Adesanya [1989] 3NWLR (pt 109) 250.
The said decision in Ezenwa v. Bestway (supra) was reported in 1999. Before then, a host of Supreme Court decisions had settled this question in favour of the view that the phrase “no suit shall be commenced…” covers all suits and whatever causes of action, Umukoro v. NPA (1997); Barclays Bank v. CCB (1996); Owena Bank of Nig Plc (1997); Atolagbe v. Awuni (1997); Osagie 11 v. Ofor (1998); FCO v. OAU (1998) etc. In our view, therefore, that remains the interpretation of the said phrase until whenever the apex court decides otherwise. Indeed, no lower court has the authority to nibble at the said reasoning of the final court in the land, Emerah and Sons Ltd. v. Attorney-General Plateau State and ors (supra); Global Trans Oceanic S.A. v. Free Ent. (Nig) Ltd (supra). It is only a lower court that wants to incur the wrath of the highest court in the land that could embark on such a course of action, Atolagbe and Anor v. Awuni and Ors (1997) 8 NWLR (pt 522) 536, 567; Dalhatu v. Tafida (2003) 15 NWLR (pt 843) 310, 336.
The simple answer to this issue, therefore, is that the decision in Ezenwa (supra) must kowtow to the unmistakable posture of the apex court on the interpretation of the phrase “no suit shall be commenced…” as embracing all causes of action, FCA Ltd v. OAU (1993) 5 NWLR 171; Mobil Nig Unltd v. LASEPA (2003) 5 WRN 1; Amadi v. NNPC (2000) 5 WRN 47; NNPC v. Farlin (1998) 7 NWLR (pt 559) 598; Umukoro v. NPA (1997) 4 NWLR (pt 502) 656; Katina Native Authority v. Makin Dawa (1971) 1 NWLR 100; Atolagbe v. Awuni (1997) 7 SCNJ 4; Anambra State Government v. Nwankwo (1995) 9 NWLR (pt.418) 247; NPC – Nig Cement Corporation Ltd v. NRC (1992) NWLR (pt. 220) 747. We, therefore, resolve this issue in favour of the appellant.
Having resolved the three issues in favour of the appellant, we have no hesitation in allowing this appeal. Appeal allowed. We hereby enter an order setting aside the said injunctive order of Abang, J. which His Lordship made on November 28, 2011. Cost assessed and fixed at N30, 000 in favor of the appellant against the first respondent.
CHINWE EUGENIA IYIZOBA, J.C.A.: I had the privilege of reading before now the lead judgment prepared by my learned brother C. C. NWEZE JCA. I agree entirely with his reasoning and conclusions. There are well recognized conditions for grant of injunction pending appeal just as in grant of stay of execution some of which are:
1. The grounds of appeal must raise substantial legal issues in an area of law that is novel or recondite.
2. The application must disclose special circumstances why the judgment should be stayed.
3. The application must disclose why matters should be put in status quo or preserve the res so as not to render the appeal nugatory.
See Shell Petroleum Development Company of Nigeria Ltd. v. Amadi & ors and the numerous authorities cited in the lead judgment. None of these conditions was satisfied in this case. I agree with my learned brother that the exercise of discretion by the learned trial judge in granting the injunction was neither judicial nor judicious. The appeal consequently has merit and should be allowed. I too hereby allow the appeal. I abide by the consequential orders in the lead judgment.
FATIMA OMORO AKINBAMI, J.C.A.: I read before now the detailed judgment prepared by my learned brother NWEZE JCA in which I fully concur with these few words, by way of emphasis.
The principles for granting injunctions pending trial are well enunciated in case law. The principles for the exercise of discretion in awarding injunction pending appeal are the same with the principles of stay of execution. See: Ajomale v. Yaduat No. 2 (1991) 5 NWLR (Pt. 191) 266.
I concur with the reasoning and conclusions of my learned brother in this judgment.
I also allow this appeal, and hereby enter an order setting aside the injunctive order of Abang, J. made on 28th November 2011. I abide by the order of costs made by my learned brother.
Appearances
Emeka Ngige, SAN, with Obiora Atuegwu Egwuatu and K. OjukwuFor Appellant
AND
V. O. OgudeFor Respondent
